Legality versus legitimacy

Over the past year or so, North Korea has appeared in U.S. headlines for everything from the idiosyncrasies of its leader, Kim Jung Un, to Dennis Rodman’s entertaining infatuation with the isolated country, to Kim Jung Un’s refusal to budge on his country’s nuclear aspirations.

Until recently, however, the United States and the international community more broadly had not really paid attention to the living conditions of the North Korean people. On Monday, the United Nations Office of the High Commissioner for Human Rights released a report based on more than 240 confidential interviews, concluding not only that “systematic, widespread and gross human rights violations have been and are being committed” in North Korea, but also that several of these violations qualify as crimes against humanity. The question is whether this report can actually change anything.

Australian judge Michael Donald Kirby, the chairman of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, summarized the findings of the report in a Jan. 20, 2014 letter to Kim Jung Un and gave him notice that he could be held personally liable for the crimes against humanity committed by state institutions and officials under his direct control.

In order for this to actually occur, however, the United Nations Security Council must pass a resolution to refer the situation to the International Criminal Court, per the recommendation of the Commission. While Kim Jung Un’s criminal trial is theoretically possible, in reality, it is unlikely.

As a P5 member of the Security Council, China has the power to veto any proposed resolution. It is likely that China will exercise its veto power with respect to any proposed referral of the North Korea situation to the Security Council, given China’s policy that refuses asylum to North Koreans who flee across the border.

Thus, it appears that the black-letter “legal” approach to dealing with the pervasive human rights abuses and crimes against humanity perpetrated by the North Korean government against its people is unlikely to be very productive. Instead, if the international community is serious about stopping these crimes, the quasi-legal notion of humanitarian intervention must be considered.

If one adopts a strict approach to the law of the use of force, the United Nations Charter technically prohibits humanitarian intervention. Article 2(4) prohibits the use of force by states against other states. Although the collective use of force is legal, the Security Council controls such use of force under Article 39. In addition, Article 51 exempts the use of force in self-defense from Article 2(4). Nowhere in the text of the Charter is there room for humanitarian intervention.

Naturally, this conclusion is troubling. If the Security Council is paralyzed by a P5 veto, and if North Korea’s sovereignty is apparently impenetrable under the U.N. Charter, then where does that leave the fate of the North Korean people? Must the international community limit itself to expressions of sympathy and unilateral economic sanctions?

One possibility is to adopt a John Bolton approach, simply denying that international law exists at all, and play power politics. In the long run, however, widespread adoption of such an approach would probably upset the international balance of power. At least the appearance of the rule of law on the international stage is a useful way to ensure that countries at least consider explaining their actions in terms of international law.

Another possibility is to argue that the North Korean leadership no longer constitutes a legitimate government and is, therefore, not entitled to the protection of its territorial integrity. If such a theory of contingent sovereignty applies, however, additional questions arise about who or what determines when a state’s leadership has breached the social contract to such an extent as to justify the intervention of a third party. Would the United States, Russia or, perhaps, the European Union wield such power, or would it rest solely with the U.N. Security Council?

In the end, it comes down to politics. The perceived legality of a humanitarian intervention depends on the relative weight of the good will in favor of such an intervention, compared to the danger of the intervention—in North Korea’s case, perhaps the risk of nuclear retaliation—and outright opposition to the intervention.

The international community has come to accept the North Atlantic Treaty Organization’s intervention in Kosovo as “illegal but legitimate.” The task for proponents of a humanitarian intervention in North Korea is to analogize the operation to Kosovo, thereby obtaining political legitimacy, if not technical legality.

Joline Doedens is a second-year law student. Her column runs every other Wednesday. Send Joline a message @jydoedens.